March 9, 2007
One nation under a pack of jacks?
Will the United States soon become a country lined with casinos and gambling parlors from coast to coast? Certainly, the lure of revenue without taxes is extraordinarily tempting for local governments, even as some localities discover that a majority of residents don't want the taint and unsavoriness that casinos and gambling may bring to their community. It is an indication of the ultimate LULU (locally unwanted land use) that cities often find it politically beneficial to propose that a casino literally not be a "land" use at all -- that instead it be placed on a barge tied to a dock in the city river or harbor. This way, the casino is removed from any neighborhood and the city takes advantage of areas that often have been abandoned with the removal of heavy industry from urban America.
In the final of a trio of posts about Philadelphia and south Jersey, the city of Brotherly Love has tentatively approved two casinos to be set in the Delaware River across from New Jersey. Why are there special pressures on Philadelphia? One reason is that millions of dollars that would otherwise be spent in Pennsylvania restaurants and bars is now spent in gambling-friendly Atlantic City, N.J., only an hour drive away. By permitting river-borne casinos in Philly, Pennsylvania should get much of that money back (and maybe even lure some Jersey money as well).
Does this competition for spending mean that coast-to-coast casinos are inevitable? Not necessarily. The casino land use (and water use) wars are bitter. The latest news from Philadelphia is that an effort to place on an upcoming ballot a rule that would have barred any casino from being within 1500 feet of any residence (read, just about all of the city) recently failed when a judge concluded that many of the petition's signatures were not valid. But environmental and other legal challenges may still delay, at least, the casino plans. Will we see casinos in most states within our lifetimes? Don't bet on it …
March 8, 2007
Generation after generation of exclusionary zoning litigation …
To most of my law students, the year 1971 might as well be 1471 –- it was before they were born, in a world that seems radically different. So it’s strange to explain to them that the saga of New Jersey’s landmark exclusionary zoning litigation, arising from the town of Mount Laurel in south Jersey, is still going on, some thirty plus years later.
This week the New Jersey Builders Association plans to present an award in the memory of Ethel Lawrence, the late activist who helped spur the Mount Laurel litigation, which established the principle that each locality in the state must take steps to provide for its “fair share” of low-cost housing. The goal was, first, to dismantle zoning laws that exclude low-cost housing and, second, to require localities to take affirmative steps to spur the construction of low-cost housing. In the 1980s, the court-made duty was replaced by code and the establishment of a state Council on Affordable Housing.
Earlier this year, a New Jersey court struck down many aspects of recent COAH regulations; one provision required each locality to create one low-cost housing unit for each eight units created by the market. One problem with this approach, challengers asserted, is that imposes little or no requirements on localities in which there is little new market housing construction. The saga continues …
March 7, 2007
Who has “standing” to challenge local land decisions?
The doctrine of standing, which restricts WHO is able to sue over an alleged violation of law, is one of the most contentious issues in citizen enforcement of land use laws. In the environmental field, it is almost literally true that if there is no one in the forest to hear a tree fall, no one has standing to sue the person who chopped down the tree. Simply “caring about” the forest isn’t good enough.
Disputes over local standing are currently playing out in the city of Philadelphia. The Pennsylvania General Assembly enacted in 2004 a law that limits to “aggrieved persons” who have been “detrimentally harmed” the standing to challenge in court Philadelphia zoning board decisions. This Philadelphia Inquirer article discusses two pending cases.
First, does a citizen have the right to challenge a variance to allow a billboard? Or is this akin to allowing anyone to sue, which goes against the grain of allowing only persons with “particularized” injury (in other words, not just a taxpayer) to sue? Second, can a variance to allow a two-family house on a small lot be challenged by someone who isn’t a neighbor?
My view of the doctrine is that it should broadly grant standing to any person who can show that he or she has been harmed. Courts should also give a broad view of the purpose of laws. Presumably, the purpose of laws restricting billboards is aesthetics, as well as avoiding traffic distractions. Thus, anyone who has been annoyed by the ugliness of a billboard should be able to sue. What’s the purpose of a maximum-size law for residential lots? Presumably it is to protect the immediately adjacent neighbors from unwanted bulk next door. But if a citizen who lived two blocks away can show that another reason for such a law is to limit “traffic” (often a bogus justification for all kinds of NIMBY arguments, but an ostensible justification, nonetheless), then this citizen too should have standing. One’s view of the merits shouldn’t affect one’s view of the scope of the law of standing. And I think that citizen suits are one of the finest features of the American legal system, no matter how much I may dislike NIMBY.
March 5, 2007
Housing authorities and inefficiency …
Why are so many local housing authorities inefficient? In Miami-Dade County, Florida, the housing agency “is a mess,” as reported by NPR this morning. Meanwhile, there is talk of having a federal HUD takeover of the authority, as discussed in the Miami Herald this winter. Among the complaints with the Miami-Dade Housing Agency is that a lot of money has been spent but few housing units have been built or supported, even as older public housing units have been demolished.
Last week, I wrote in favor of greater governmental efforts to support the construction of semi-permanent housing for the chronically homeless. This week I write to express concerns about entrusting matters as important as low-income housing to public authorities. Conservative humorist P.J. O’Rourke has written that to call something “public” is to define it as inefficient. (Think of the current news about Walter Reed Army Medical Center.) This may be unfair, of course, to many dedicated pubic officials. But there is often reason for concern in the running of housing authorities. It is a thankless task to try to swim counter to market forces and foster low-cost housing while trying please various political constituents. It requires knowledge and skill in dealing with real estate, construction, and tenant relations, among other factors, beyond politics. Employees are often poorly paid, and the housing authorities often do not attract employees with the experience necessary to run such a complex operation.
What is the solution? One way to help is for the watchdogs of government -– the news media, housing residents, and other public-spirited groups –- to complain loudly when a housing authority is not doing its job. The spotlight trained on Miami-Dade at the moment is likely to help matters significantly, including providing better oversight by governmental leaders who otherwise might not pay much attention to their local housing authority.